appunti lezioni international law, Appunti di Diritto Internazionale

Scarica appunti lezioni international law e più Appunti in PDF di Diritto Internazionale solo su Docsity! 1 International Law What is international law? The core principle is the presence of nations and states as units of that society. It’s a legal order, the only legal order that is shared by all member of the international communities and societies of states. It includes common rules. It’s not a foreign law, it’s not the law of foreign states. It’s a set of rules made by states, in order to regulate their legal relationship. It regulates the external sovereignty of states but also the exercise of internal sovereignty (what states can do inside of their jurisdictions, because these rules can also be applied to relationships with other foreign states). In many cases international legal rules are implemented or violated within states, either by officials with legislative, executive or judicial functions. Sometimes important bodies like the parliament adopt a law that goes in contrast with the international law. The police authority that puts a foreigner in jail has to take into consideration the international law concerning the treatment of international prisoners. Why do states accept to have this international responsibility towards other states? They accept to have corresponding duties mainly to obtain rights. But also to gain economical advantages. Why do states violate international law? Sometimes they do it unintentionally because they lack sufficient knowledge. What’s the guarantee of international law? It depends on the constitutive elements of international law. They trace back to the 17th century, and those principles were not written. We’re dealing with a phenomenon that has been shaped in the last 4 centuries in Europe. The peace of Westphalia established not a vertical or a pyramidal order of power but a horizontal legal framework (not a centralised force of power). The principle underlying this structure is the sovereignty equality among states (basic principle of international law) -> each state being equally sovereign. If sovereignty and sovereign equality among states is the core principle of international law, it implies that there is a law institutionalised society. -> institutionalised cooperation. Institutions are just forms of international cooperation among states. How is law made? Laws are created in a participative and consensual way, with consent found among the states. Disputes are also solved on a consensual basis, through an arbitrator, a mediator, an international judge. Finally, we rest on self-implementation. Sovereign states are the units of international law. Sovereignty also shapes the content on the rules. Sovereignty implies equality, and equality implies absolute independence of a state from another state or from any external authority. Rules have to be accepted by a state willingly. -> principle of non-interference Evolution of the international law The origin of modern IL as it is structured nowadays is the peace of Westphalia (1648), at that time a new legal order based on reciprocal independence and free competition and equality among states. At that time it was only base on the European community, and it followed a subsequent phase of colonization. Revolutionary attempt to upset the principle of sovereign equality to establish hegemony (Napoleon, socialism, Nazism, unilateralism). The international community reacted by applying international rules to limit this behaviour and the sovereignty of states and the way states may exercise their authority. For example by creating international organizations or institutions -> they constrain the exercise of sovereignty. But also because we have developed a scope of substantive rights and duties of states and partly of non-state actors. -> expansion of international law beyond party-states. At the very beginning of this evolution, the rules were about the coexistence of sovereign units, while now they are based on cooperation. From coexistence -> to cooperation; form unilateral -> to bilateral. What’s the effectiveness of international law? – It’s applied everyday, diffusely -> spontaneous compliance to a legal rule – States participate to the creation of international compliance mechanisms and international legal rules 2 – Several state organs are involved in it Subjects of international law International law is the legal order of international society. In the past, international life was mainly a life made up of relations among states, so in the past the actors of the international society were states. Nowadays there are several other actors that take part in the international life, like international organizations, single individuals.. but do the all possess international legal personality? Legal subject: international legal subjects are any subjects capable of having subjective rights and legal obligations under international law -> any entities having rights and duties stemming from an international legal rule, or being capable of having subjective rights. At the very beginning, only states were considered of being capable of having rights and duties, so they were considered as the only addressees of legal rules. Legal rules were conceived as rules recognizing or granting rights and imposing duties upon states. Subjects if law in any legal systems are not necessarily identical in their nature or in their extent of rights. The development of international law has been influenced by the requirements of international life. Sovereignty and the features of sovereignty are assigned to states by international law -> single individuals and organizations have no sovereignty. How is a state defined in the international law? An entity governing a territorial community effectively and independently. The state, according to the Montevideo convention, is made of: – Territory: partial dimension of the existence of a state. There’s no state without territory. The sovereignty of a state is limited by its borders. But there are some areas that are not part of either state: the high sea and the Antarctic continent (res communis omnium). – Population: the whole of individuals living together on a stable basis within given borders, by way of community with is own political identity. The population of a state is a requirement of a state, but its recognition is given by a governmental apparatus. – Government: exercise of authority by a state upon a population in a given territory. This government must be exclusive. Two criteria on the exercise of such authority are necessary to exist: independence and effectiveness. If there’s some sort of government that exercises its authority over a population, but this government is not independent or effective, then there’s no state corresponding to that government. It can be considered as a different entity, but not as a state. Effectiveness is the objective criterion of government, and it’s an essential requirement. The origin and legitimacy of a state are irrelevant to international law. What matters is the capacity of making and applying the law and to protect the population from external violence and threats. -> monopoly in the use of force internally and externally (national defence). Governments in exile are NOT effective (for ex. Charles de Gaulle government was considered exile in London), although they may be recognized standing in international relations.  Tinoco award (1923): a government shouldn’t need to conform to a previous constitution is the government has established itself and accomplished a peaceful de facto administration.  Badinter Commission: ‘the form of internal political organization and the constitutional provisions are mere facts, , although it is necessary to take them into consideration in order to determine the Government's way over the population and the territory’ -> IL doesn’t care whether a state has a legitimate government or not but it only takes into consideration the constitution to see the use of force and law- making capacities. IL does not require that a state is a democratic one or that it 5 Principle of people’s self-determination It was not a principle of international law before decolonization. It grew in order to legitimize the process of independence of colonized peoples. Law is a social construct. The general assembly of the UN is formed by one representative for each member state. In the 50s the general assembly gathered European countries, American countries, but only a few African and Asian countries, because they were still colonies and not independent states. Nevertheless, there was a sufficient majority of states believing that people living under colonization had the right to be independent states. This assembly passed a resolution based upon this principle. This principle DOES NOT apply retroactively. Apart from the colonial framework and those peoples which were colonies, this principle DOES NOT apply to situation of domination by a foreign state. This principle is stated in art. 2, 55, 56 of the UN Charter. It was already present in 1948 when the charter was drafted. Its legal content was then shaped by the general assembly. There’s two main universal treaties: many states have ratified both but some of them ratified only one. They are NOT binding per se, even if they have a legal effect. ICJ’S main decisions or opinions dealing with the principle of people’s self-determination  1971 Namibia: Namibia is important because the ICJ established that the right of peoples to self determination is the object of a customary rule of international law -> meaning that it applies to all states in international legal subjects. This principle has a right component, and a corresponding obligation upon states to respect this right (not to govern a foreign people). How did the court reach this conclusion about the customary nature? By considering the fact that the general assembly adopted a declaration, and that the declaration expressed the opinion of all states that such a principle exists. It’s extremely useful to read how the court expressed this: (read paragraph from power point)  1975 western Sahara: western Sahara was recognized in this opinion of the court as the state of a people. There’s a people in western part of the Sahar desert that requires the right to self-determination. Polisario Front: tracing its origin to a Sahrawi nationalist organization known as the Movement for the Liberation of Saguia el Hamra and Wadi el Dhahab, the Polisario Front was formally constituted in 1973 with the intention of launching an armed struggle against the Spanish occupation which lasted until 1975, when the Spanish decided to allow Mauritania and Morocco to partition and occupy the territory. The Polisario Front waged a war to drive out the two armies. It forced Mauritania to relinquish its claim over Western Sahara in 1979 and continued its military campaign against Morocco until the 1991 ceasefire, pending the holding of a UN-backed referendum which has been consistently postponed ever since. In 2020 the Polisario Front declared the ceasefire over and resumed armed conflict. The United Nations considers the Polisario Front to be the legitimate representative of the Sahrawi people and maintains that the Sahrawis have a right to self-determination. Nowadays those territories are governed by Morocco, even though there’s an opinion dating back to 1965 identifying a people there and its right to self-determination. So what did the court add to its understanding of self-determination? That all situation of colonial domination should be quickly terminated. But this principle hasn’t been implemented yet. N.B The ICJ doesn’t recognize rights and duties but identifies the content and the scope of existing norms. 6  1995 east Timor: under the UN charter and the case of ICJ itself, the principle of self- determination is considered among the fundamental principles of contemporary international law. It added a very important element of this norm: this obligation is owned by a state towards all other states of the international community -> all other states have a right to expect that this legal obligation is respected (erga omnes). If I violate that obligation binding me, I violate it towards all the subjects of the international communities. Thus all other states may enforce this obligation against me.  2004 wall in Palestine: it recalls that it has erga omnes effect, and other effects. 1. all other states are under the obligation not to recognize the exercise of sovereignty by the occupying state. -> if a foreign state occupies a territory where a people lives under a permanent basis, all other states MUST NOT recognize the exercise of sovereignty and any legal effects of the rights adopted by the occupier. 2. the other states must not assist the occupier. 3. to make effort aimed at removing all obstacles to the exercise to the right of self determination in a given situation.  2010 Kosovo: the principle of territorial integrity only applies between states, but Kosovo was not a state. It was an entity among a state. So it didn’t apply to it. Is remedial secession* lawful under IL? The ICJ noticed that there was no opinion iuri at the time in favour of a rule providing for remedial secession.  2019 chagos islands: Example of Current colonial domination and unlawful administration by the UK. N.B International Law ONLY considers EXTERNAL self-determination!! -> independence from a foreign occupation Two possible ways to acquire self-determination: 1. Peoples under a foreign occupation may become an independent state, for ex. What Western Sahara might do. 2. join a pre-existent state (ex. Donbass may join Russia) In order to pursue either path a people may also exercise the use of force!! Relevant situation: – Colonies – Occupying power through an act of force – Racial segregation Internal self-determination There’s no international legal obligation to not respect the INTERNAL self-determination: the right of a people to choose its own constitutional shape and its form of government. Political rights are not provided by customary rules but by treaty law. It’s a choice, it’s the result of the will of states. Who might aspire to internal self-determination? Mostly indigenous people and minorities. Very often we find situations where minorities and indigenous cannot choose their government and constitutional rules. In many cases where internal self-determination is not respected, violations of human rights occur (correlation). There’s a notion that has been developed but which is not yet a legal notion of IL -> remedial secession, meaning the right for a people to separate itself from the state not recognizing this internal self-determination, so to leave that state. Secession is a remedy 7 and not a right itself. However, this is not yet content of international legal rule. There’s not yet a rule governing that situation under IL. International Organizations International Organizations are among the subjects of the International law NOT linked with a territory. They constitute a form of international cooperation through the means of institutions. When states establish institutions for cooperating for a common aim, not necessarily an international organization is established (ex. common organs, which don’t have an autonomous legal personality, or international conferences). Cooperation between states dates back to the 19th century with the first forms of international cooperation with Fluvial Commissions (to regulate shipping in a river crossing several states), or international administrative unions, to coordinate This phenomenon grew even more after the WW1 and it grew out of the treaties that were signed in Versailles (1919 Versailles peace treaties), which established two international organizations: – The league of nations – the international labour organization (oldest multilateral organization still operating nowadays). After WW2 the phenomenon proliferated and many organizations were established, like the UN, but also regional organizations, for ex. the council of Europe. International organizations express a will of states to cooperate on a common interest they have identified, by creating a stable organization towards that aim. Once they express that will, these countries bind themselves to a treaty. This also implies that even though that are states that are not original members and did not take the original initiative with the member states, they can still adhere to the treaty. International organizations are upon the voluntary choice of states, since it’s a contract and they can decide to withdraw. IOs are associations of States. International organizations are given an aim to pursue and competences to that effect. They are not territorial entities but functional entities. This also explains why they have limited competence, unlike states. Their action is limited by the treaties. IOs cannot act beyond the aim and the competence they are conferred (principle of conferral) The principle of conferral is a principle that dictates an international action. Even the EU cannot act beyond the competences it is conferred. IOs are given organs to put in place the action expected by them. They don’t act through the bodies of their member states, they have their own organs. They don’t come into existence without voluntary choice. But once they are existent they cannot be considered as longa manus. They are not subjects of states. Two conditions must be met to acquire international legal personality: 1. IOs derive their competences and powers from their own source. Their powers are not regulated by the constitution of a state, but there’s a source of law which establishes them (IOs statute). IOs derive their competence by a treaty (statute) establishing them. This statute is the primary law. 2. International institutions must be able to put in place internationally relevant acts, they must be able to take part in the international community. These acts are attributed to the IO, not to the states. +debate on the rejection by some people to consider the league of Arab states as an IO. If these two criteria are met, the IO is thus considered as an international subject. 10 If they act ultra vires, the members simply do not adopt the acts. The UN Universal organization with political aims. Established with the San Francisco Charter open to signature in 1945. It went from the original 51 members to 193 members, except for Vatican City, Palestine and Taiwan (it used to be a member from the beginning until 1971, but then it was replaced by the People’s republic of China). The Soviet Union had an interest in keeping Ukraine and Belarus in the UN in order to keep voting powers at the general assembly and possibly at the security council. Purposes: Art 1. “The Purposes of the United Nations are: 1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; 2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace; 3. To achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.” Principles: Art.2 1. The Organization is based on the principle of the sovereign equality of all its members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. To authorize the UN to intervene in matters of domestic jurisdiction 11 Member status admission Art. 4 1. “Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. 2. The admission of any such state to membership in the United Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.” There have been members that were not states, like India under the colonization of the British empire, Belarus and Ukraine. Suspension: Art. 5 “A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council.” Total suspension of all rights and member status if the state is the addressee of a measure under chapter 7 Partial suspension (art. 19) in particular of the right to vote, for ex. if a member state hasn’t paid the financial contributions due: “A Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The General Assembly may, nevertheless, permit such a member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the Member.” Expulsion art. 6 if it PERSISTENTLY violates the principles by the general assembly upon recommendation of the security council: “A Member of the United Nations who has persistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.” Statutory organs:  General assembly: established and regulated under chapter 4. ▪ Composition: all members are represented on an equal footing, one-state-one- vote. They may discuss any questions on any matters within the scope of the present chapter. ▪ Scope of powers: its primary role is to discuss issues and make recommendations, though it has no power to enforce its resolutions or compel state action. Other functions include admitting new members; selecting members of the Economic and Social Council, the non-permanent members of the Security Council, and the Trusteeship Council; supervising the activities of the other UN organs, from which the General Assembly receives reports; and participating in the election of judges to the International Court of Justice and the selection of the secretary-general. Decisions usually are reached by a simple majority vote. On important questions, however—such as the admission of new members, budgetary matters, and peace and security issues—a two-thirds majority is required. Voting policy is based on the majority, so one-state-one-vote. The majority can either be simple majority or qualified majority, depending on the importance of the issue. 12 ▪ Limits: the assembly must refrain from adopting a recommendation while the security council is exercising its powers in respect of any dispute or situation. If the security council is active the assembly cannot act any recommendation. This is due to the asymmetry between these two organs and the fact that the security council produced a binding legal effect. ▪ Focus: maintenance of international peace -> coordination between GA and SC The UN meets in regular annual sessions and in special sessions as occasion may require, at the request of the SC or the majority of the members. The large size of the General Assembly and the diversity of the issues it discussed contributed to the emergence of regionally based voting blocs in the 1960s. During the Cold War the Soviet Union and the countries of eastern Europe formed one of the most cohesive blocs. Since the 1980s and the end of the Cold War, blocs have formed around “North-South” economic issues—i.e., issues of disagreement between the more- prosperous, industrialized countries of the Northern Hemisphere and the poorer, less- industrialized developing countries of the Southern Hemisphere. Members that have been punished by the assembly: The General Assembly has the power to censure states for violating UN Charter principles. In the 1960s, the assembly suspended the South African delegation from the United Nations because the country was practicing apartheid, in violation of Security Council resolutions and international law. South Africa was readmitted in 1994, following its democratic transition. In 1992, after the dissolution of Yugoslavia, an assembly resolution denied Serbia and Montenegro the automatic inheritance of the former Yugoslav seat, requiring them to reapply for UN membership and forgo participation in assembly deliberations. Israel was barred for many years from serving on UN commissions and panels because the slots are allotted according to membership in the UN’s five regional groups. Arab states had blocked Israel from membership in the Asia-Pacific Group, which includes other Middle Eastern states. Israel was made a temporary member of the Western European and Others Group in 2000 by the United States and some European countries. In August 2012, the General Assembly voted 133–12 to denounce the Syrian government for atrocities since the start of the Syrian civil war in March 2011. Thirty-three countries abstained from voting on the resolution, which was overwhelmingly backed by Western countries and their allies. Following Crimea’s March 2014 referendum to leave Ukraine and join Russia, the General Assembly adopted a nonbinding resolution declaring the referendum invalid and Russia’s annexation of Crimea illegal. In December 2019, the General Assembly passed another nonbinding resolution condemning human rights abuses against Muslim Rohingya in Myanmar.  Security council: 15 members and 5 permanent members + 10 non-permanent members. Criteria: – Members that contribute to the maintenance of peace and security + equitable geographical distribution. The non-permanent members are generally chosen to achieve equitable representation among geographic regions, with five members coming from Africa or Asia, one from eastern Europe, two from Latin America, and two from western Europe or other areas. 15 Since the principal tool of cooperation is a treaty, and since a treaty is the agreement between international legal subjects, the UN and the IO in question have to find an agreement for the IO to be considered as a SA. This agreement provides for: – Consultations. – Coordination of services – Control by the UN, expressed by the fact that they have to report annually to the ECOSOC, which supervises the conduct of the SA -> submission of a report N.B: SAs are NOT auxiliary organs of the UN. The classical approach It developed in the Westphalian system in 17th century. It was an interstate system and legal order, and it was state-centred. The only subjects of IL were states. Law was made by states and law- making power was in the states’ hands only. It addressed the relations between or among states. Individuals were legal subjects but exclusively of the domestic legal order, and not the international one. IL didn’t deal with individuals and individuals’ rights and duties. There were no remedies available at the international level for individuals to have their rights asserted. In the 19th century, international arbitrators solved disputes involving individuals, because these arbitrators or arbitral tribunals were not within the regulation of the domestic law of a state. That was provided in a contract that the individual entered with a state (ex. borrowing and lending money). Individuals were considered as belongings of a state, and they became relevant under IL as citizens, because IL protected the property of a state, and thus the individuals belonging to a state. Treatment of aliens: while the principle of national treatment foresees that aliens can only expect equality of treatment with nationals, the international minimum standard sets a number of basic rights established by international law that States must grant to aliens, independent of the treatment accorded to their own citizens. As sovereign national states began to develop in modern times, founders of international law asserted that natural rights were vested in all persons, without regard to citizenship or alienage— rights of which they ought not to be deprived by civilized societies or their governments. There was no general agreement on the content or scope of these natural rights as they affected aliens, but the existence of some minimum standard of civilized treatment was asserted. To meet this situation, states entered into treaties that provided that each of the contracting states would treat the nationals of the other state on an equal footing with its own nationals in the admission into trades and professions, ownership or possession of property, access to courts, enjoyment of liberty of conscience, and freedom of worship. Some treaties do not purport to extend to aliens, however, rights that are by municipal law reserved exclusively to nationals of the country; thus, municipal law, rather than conventional international law, is actually controlling. Aliens thus have an inherent right to life, protected by law, and may not be arbitrarily deprived of life. They must not be subjected to torture or to cruel, inhuman or degrading treatment or punishment; nor may they be held in slavery or servitude. Aliens have the full right to liberty and security of the person. If lawfully deprived of their liberty, they shall be treated with humanity and with respect for the inherent dignity of their person. Aliens may not be imprisoned for failure to fulfil a contractual obligation. They have the right to liberty of movement and free choice of residence; they shall be free to leave the country. Aliens shall be equal before the courts and tribunals, and shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law in the determination of any criminal charge or of rights and obligations in a suit at law. Aliens shall not be subjected to retrospective penal legislation, and are entitled to recognition before the law. They may not be subjected to arbitrary or unlawful interference with their privacy, family, home or correspondence. They have the right to freedom of thought, conscience and religion, and the right to 16 hold opinions and to express them. Aliens receive the benefit of the right of peaceful assembly and of freedom of association. -> However, the physical integrity of a foreign individual had to be respected even in a host state. (If a private individual in a foreign country damages my physical integrity or my property, I must be able to find a judicial means of redress, even if I’m not in my home country but in a host-state). Treatment of aliens is still a part of international law. A change occurred in the half of the 20th century, after WWII. At that time some rights and duties upon individuals started to stem from international legal rules, and some remedies were put in place by international legal norms. However, our subjectivity under IL Is still partial. Customary law Customary rules developed because of a practice expressing the belief that a rule exists. States recognize that treaties and customary international law are sources of international law and, as such, are binding. This is set forth, for example, in the Statute of the International Court of Justice. The Individual criminal responsibility was born in 1946 in the Nurnberg tribunal. When individuals commit international crimes, a state also breaches a rule of IL. International crimes are war crimes, crimes against humanity and genocide. These crimes do have international customary law definitions. They are defined in a way which applies to everyone in the world. War crimes are crimes that consist of acts of aggressions and atrocities made at war. Customary rule on war crimes prohibits conducts by single individuals to commit acts of aggression and atrocities at war. Under customary law, we are all addresses not of rights but of an obligation not to commit international crimes. Treaty law It’s particular and not general. It also provides rights and duties to individuals. It’s a law that applies to parties of the treaty who voluntarily bound themselves to the treaty. These parties are not individuals. We derive rights from treaties, BUT the intervention of our state in necessary -> if the state is not a contractual party of a treaty, I cannot claim any right under that treaty. Sometimes treaties establish international remedies (ex. European court of human rights). In most cases, human rights treaties are judicial, quasi-judicial or political bodies. Paragraph 77 LaGrand judgement: ‘ (…) the obligations the receiving State has towards the detained person and the sending State. It provides that, at the request of the detained person, the receiving State must inform the consular post of the sending State of the individual's detention "without delay". It provides further that any communication by the detained person addressed to the consular post of the sending State must be forwarded to it by authorities of the receiving State "without delay"(…) "The said authorities shall inform the person concerned without delay of their rights under this subparagraph" (emphasis added). Moreover, under Article 36, paragraph 1 (c), the sending State's right to provide consular assistance to the detained person may not be exercised "if he expressly opposes such action". The clarity of these provisions, viewed in their context, admits of no doubt.’ In some cases, individuals are legal subjects of the IO’s legal order. EU sources of individuals’ rights and obligations are: – treaties establishing the EU – regulations – decisions. 17 PACTA SUNT SERVANDA: Pacta sunt servanda esprime un principio fondamentale e universalmente riconosciuto del diritto internazionale generale, ovverosia il diritto che si applica a tutti gli Stati e sul quale si basano le relazioni internazionali tra gli Stati: i patti, i trattati, le intese o più in generale gli accordi degli Stati vanno rispettati. L'art. 26 della Convenzione sul diritto dei trattati è rubricato pacta sunt servanda e afferma: «Ogni trattato in vigore vincola le parti e deve essere da esse eseguito in buona fede». Enterprises and organizations We could consider the issue of multinational enterprises and non-governmental organizations under this perspective, but what about individuals as juridical persons? Private subjects are both natural persons and juridical persons. Today it especially comes into relevance when we consider the issue of legal subjectivity under IL. Nowadays two private actors play an important role at international level. They are multinational enterprises and non-governmental organizations. MNEs are international enterprises usually operate through a main corporation having its seat in a given state and a number of branches. Each of these are subjected to the domestic law of the state where it’s incorporated or where it operates. Some of these enterprises have a bigger income than states’ GDP, and their impact may affect their surroundings. But apart from domestic law, are there international legal norms specifically concerning MNEs? So, addressing these private actors in their status of MNEs?. No. Formally no, because the only norm having customary nature (general norm under IL that is applicable to private subjects) is the norm concerning individual criminal responsibility, which addresses physical persons and not legal persons. Thus, we cannot say that corporations are the addressees of rights and obligations under IL. Measures address obligations upon states or subjects withing the domestic jurisdiction. There’s no direct link or act by the SC concerning sanctions on individuals. International investment treaties provide rights to cooperations having ownership in branches abroad. Moreover, thoughts of conduct have been developed under IL (ex. Benetton includes a sustainability clause in its contract). This way of shaping these contractual business relations according to human rights, environmental interests etc. finds its origin in a development which has occurred at an international level first of all. There have been being ongoing negotiations on legally binding instrument by and for developing countries to regulate the activities of transnational corporations and other business enterprises. They are not applied directly upon them but upon states ratifying the instruments and under their jurisdiction. NGOs are subjects of private law under domestic law, even if they operate across several countries. They don’t have international legal subjectivity. They launch the idea of writing a treaty of a certain subject, which will later become a future actual treaty. They can provide technical expertise to states and international organizations, so NGOs are often consulted. They are relevant in the international community and they often accompany delegations of states in international conferences. They contribute to decision making process and have an active role in trying to make IL enforced and applied. So they have a role in controlling states’ conduct -> they act as a guard dog. In some cases, they are allowed to act as amici curie, so they issue briefings where they express their own legal reading of the case which is at stake. There’s no right to intervene as amicus curie. This status, which is not universally recognized, it’s granted by each international court, either according to its constitutive elements or because there’s discretion left to the curt. Sources of international law What are sources of international law? There’s no constitutive element which can answer. They are identified according to what states agreed what sources of international law are. Sources are identified by the agreement of states that certain acts do constitute sources of obligation under IL. There’s a provision containing a list which is the reference for identifying those sources. 20 The conclusion of a treaty refers to the process of putting the treaty into existence. States are free to choose how to negotiate a treaty, how to write a treaty and how to be bound by a treaty. The Vienna convention follows two different procedures which are the two most common ones:  A solemn one: lot of steps. First of all, negotiations. Parties realizing that they have interest in entering into a deal with other states, first of all approach each others. They negotiate and they find a compromise. Bu who negotiates treaties? Only authorized persons may negotiate. Art. 7 Vienna convention: 1. A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if: (a) he produces appropriate full powers; or (b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers. 2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited; (c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ. -> the person is chosen on a case-by-case principle, unless they are head of state, head of government or minister of internal affairs, because they already have full powers in all negotiations. If a treaty text is negotiated within an international organization or conference, the representative of a state is considered as having full power without the need of producing full power. Sometimes multilateral agreements are initiated by international organizations, which have the mandate to pursue an aim with the means available to them. The second step that follows the negotiation is the adoption of the text: states finally find a compromise, so they write it down. They adopt the content of the treaty either by unanimity or by a majority of 2/3 in some exclusive cases. The third step is the authentication: states declare that that content is reflecting their compromise, that it’s what they’ve agreed upon. Then there’s the ratification, which doesn’t take place at an international level but at a domestic one. Finally there’s the exchange  A simplified one: it misses one major step, the ratification. Its steps are the following: 1. Negotiation 2. Adoption of the text 3. Signature: same effect as ratification in this case. But is it always possible? There’s two possible answers: – It must appear at an international level that there’s an intention to commit to it, starting from the negotiation. 21 – Also, we have to look at domestic laws, they must allow it, because what if a treaty violates the domestic law of a state? Treaties are not supposed to know and be aware of the domestic law adopted in each state. When there’s an actual violation of the domestic law by the treaty, two conditions must be met: – It should be manifest, it must be objectively evident and – concerned with a rule of its international law of fundamental importance. Consent is invalid if a violation is manifest and if it would be objectively evident to any state conducting itself in the matter in accordance with the normal practice and in good faith. 4. Registration by the UN Secretariat A treaty can be either closed or open 1. Closed treaty: closed for the states that haven’t participated in the negotiations. Signature is a pre-requirement for the ratification. 2. Open treaty: states other than those negotiating may bind themselves to a treaty. It happens in two different ways: – Provided that they meet the requirements for being a contracting state, and it happens through an act of approval which requires acceptance. – Through an act of accession Reservations to treaties States may be willing to be bound to a certain treaty, but not to all of its clauses as they stand. There might be the will not to be bound by a specific clause => flexibility for the state to commit to the treaty. Why? Because if this was not allowed, many states would refrain from committing to international treaties, which we remind to be the tool of international cooperation. VCLT, art 2 d) : 3 types of reservations (riserve eccettuative), they exclude some clauses from the commitment of a state. ex: international treaties on economical and social rights. Modifying reservations - modify texts Interpretative reservations. Reservations are regulated – it’s not something left at the absolute freedom of a state, because there are still customary rules on reservations. According to art. 19 UNCL: A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless: a) the reservation is prohibited by the treaty; b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty. Two aspects: when and what the content can be? Before 1951, a reservation could be made if this was expressly agreed during negotiations. The core/essence of the treaty must be preserved, all the contracting states must be bound by them. Nowadays we distinguish between admissible and inadmissible reservations, based only on whether they are contrary or not to the aim of the treaty. ex: Switzerland, everyone deserves a fair lawsuit. You cannot exclude recognition of such a right through international law. 22 According to art. 26 UNCL and to the pacta sunt servanda principle, ‘every treaty in force is binding upon the parties to it and must be performed by them in good faith.’ A treaty is always binding upon the contracting parties. But what about the non-contracting states? Treaties are like contracts, and are based on the principle of privity of contract. Treaties have relative effect: pacta tertiis nec nocent nec prosunt. -> [i patti non possono né nuocere né giovare ai terzi]. Il principio sancisce che un trattato [vedi] non può creare né obblighi né diritti a carico di uno Stato se lo stesso non vi abbia dato il consenso . Ciò non significa, comunque, che un trattato (es.: un trattato aperto che prevede, cioè, la possibilità di adesione a Paesi terzi), non possa concedere unilateralmente vantaggi a terzi (subordinatamente alla successiva accettazione degli stessi), ma certamente i diritti e gli obblighi oggetto del trattato devono sempre e comunque limitarsi alla sfera d’azione delle parti stipulanti e dei soli Stati contraenti. Art. 34 VCLT: ‘a treaty does not create either obligations or rights for a third State without its consent.’ For an obligation to arise upon a non-contracting state, explicit consent in a written form must be given (art. 35 VCLT). If two or more states conclude a treaty and they agree to impose rights to 3rd party-states, consent benefitted from that right is presumed, if a treaty confers a right to it: you cannot pretend to enjoy your right arising from a treaty you are not contraction in. This happens only if this is written in the treaty explicitly (1888, Convention of Constantinople, right of passage through the Suez Canal extended to all states - conditions for the exercise of the conferred right are compulsory). Treaty interpretation The result of the interpretation of a treaty might not be the same, depending on the interpreter. There’s no system of precedent in the international order. The major leading rule is the rule of the means. The result of the interpretation must be consistent with the application of these means. There’s an obligation of means, not an obligation of result. The intention of the parties is considered within under the supplementary means of treaty interpretation. Art. 42 UNCL ‘The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty.’ Invalidity of treaties Invalidity implies that the treaty does not produce legal effects. It has to be considered as never having had any legal effect in the past. -> Ex tunc (opposite of ex nunc): l'espressione ex tunc è adoperata come sinonimo di retroattività per indicare che un dato atto giuridico esplica i suoi effetti non dal momento in cui viene posto in essere ma da un momento anteriore. Ad esempio, la condizione opera ex tunc; se si tratta di condizione finale tutti gli effetti dell'atto al verificarsi di questa, vengono posti nel nulla, in quanto l'atto stesso si considera come mai esistito. If a state commits to a treaty through a manifest violation of part of its domestic order, that treaty will not product any effects in that state. If it’s a multilateral treaty, the treaty will produce legal effects to the relations between the other parties, but not with the state at stake. What’s invalid here is the commitment. Treaty has to be considered as a contract. The typical grounds for invalidity of contract also apply to the invalidity of treaty law. – Error – Fraud – Coercion through the use of force upon the representative of the state. In 1949 the then Czechoslovakia gave part of its territory to the Reich, to Hitler, under the Munich agreement. But the state entered the agreement with tanks at the boundary, and that was the threat in the use of force, so it’s an example of invalidity of a treaty under coercion. – Incompatible with a norm of ius cogens, a peremptory norm of international law 25 chagos island) -> mobility of borders. If succession ends up with the creation of a new state (Kosovo), the new state is free to bind itself to the treaty it wants. Tabula rasa.  Dismemberment: implies that the former state ceases to exist. Each new state is free to join existing or new treaties, by expressing manifest will to be bound.  Incorporation: the treaties of the state having ceased to exist cease to produce legal effects. The treaties of the incorporating state will apply.  Merge: the new state is not bound to the treaties of the previous States  Radical change in government: no tabula rasa, except for highly politically sensitive treaties IL is absorbent, it’s permeable by general principles that are recognized by the domestic legal order of each state. Evolutionary interpretation of the meaning ‘civilised’ OTHER SOURCES: Jus cogens and erga omnes – international conventions – international custom – general principles of law recognized by “civilized nation” – subsidiary means for the determination of the use of law N.B these are not all of the other sources, since for example International Organizations – which are sources – are not present on this list. General principles of IL RECOGNIZED BY “CIVILIZED “ NATIONS. ‘Civilized’ is an old term that we must put aside. It refers to the states that recognize the principles of the UN In IL we have principles and sources which are common to most domestic legal sources. These are basic principles of law, inherent to the very idea of law: good faith, ne bis in idem (a person cannot be judged twice for the same thing), favor debitoris, nullum crimen sine lege. The principle of legality or nullum crimen, nulla poena sine lege covers both prohibited criminal conduct (nullum crimen sine lege) and sanctions for it (nulla poena sine lege). In its broadest sense, the principle of legality encompasses the following in respect of criminal provisions: (1) the principle of non-retroactivity (nullum crimen, nulla poena sine lege praevia); (2) the prohibition against analogy (nullum crimen, nulla poena sine lege stricta); (3) the principle of certainty (nullum crimen, nulla poena sine lege certa); Nullum crimen sine lege is the principle in criminal law and international criminal law that a person cannot or should not face criminal punishment except for an act that was criminalized by law before he/she performed the act. It is also interchangable with "nullum poena sine lege," which translates to "no punishment without law". Complementary function/ gap filling with other sources: if an issue is not regulated by a customary rule/treaty dealing with a specific principle: nullum crimen sine lege. There’s also a connecting function - it links the dots – for customary rules that need to be connected with one another and rules that have to be shaped. These principles are common to many States these principles, they are not so abstract. They’re largely used by judges, courts, adjudicators, arbitrators, lawyers. – Acts provided by treaties - acts set up joined commissions of the parties, common organs, conferences of the parties or they establish IO with their own bodies. – Environmental law - treaties deal with only major aspects, especially for multilateral treaties. States gather, they agree with general principles and rules and they identify framework provisions, but international cooperation should produce more specific binding regulation of conduct. Imply high level of technicality, which requires high level procedures. All this is written in a treaty and then there is the need to implement this with more specific rules. 26 – Joined commission - power to adopt more specific provisions, these are not treaty provisions. They are more flexible and a more precise instrument. It’s a body that is established and entrusted to produce more specific acts. What are these acts adopted by bodies established in a treaty? They are sources of a third level (foreseen in treaties). 1. First level - customs, 2. second level - treaty, 3. third level - another type of sources, treaty providing for these sources - one source is foreseen by the other source. Custom cannot be foreseen, it’s an immediate interaction. Most acts of this category are adopted by IOs. Mainly given power to adopt a recommendation, but the acts are NOT binding. They are addressed to the member states, they cannot be able to recommend something to a third state. If you conform your conduct to a recommendation by an IO, some authors, Benedetto Conforti, claims that there is a presumption that the conduct is lawful. If that conduct violates IL, the duty of care of the State arises. In few cases can have binding effects: the UN Security Council of Resolutions Chapter VII, the ILO and WHO (acts for the pandemic). They are binding upon States, unless the State rejects them, within a given time from their adoption. There are norms identified as categories, which share some features that distinguish them from other norms: jus cogens and erga omnes - customary norms, within customary law. They are identified as norms and a protecting fundamental value of the international community (as if it was one group, with its own identity and values). They cannot be derogated by any other norm. They can only be modified by a subsequent norm of the same category. Norms considered as jus cogens: prohibition of aggression (protection of peace and territorial integrity), genocide, racial discrimination, apartheid (life of the individual is a value, also human dignity), torture, slavery - common in the past, relations among states have changed. They cannot be lawfully derogated. The essential core of human rights should be considered: emergency healthcare, food, water, shelter, social rights etc. In case of a conflict with jus cogens, there’s ground for invalidity of the treaty (art 53, VCLT) or for termination. We cannot declare void a custom, it becomes inapplicable -> states are required not to behave to the customary norm anymore and to use jus cogens. When a state performs its sovereign function, this state cannot be judged/brought before the judge in front of a foreign state: immunity of foreign state from civil jurisdiction => rule of customary international law. But there is also a peremptory rule prohibiting gross violations. Case: ICJ, Germany VS Italy, 2012, this customary norm is in contrast with this jus cogens - this is what the Italian judge found. Germans soldiers in Italy killed and deported a lot of families. They claimed damages against Germany, Germany opposed this, of course. The fact that a customary norm should be left unapplied if it is in contrast with a peremptory norm, applies ONLY if both norms are substantive. The state immunity in this case is a procedural customary norm. The ICJ rules in favour of Germany. Italian legislation has passed law according to this, but Italian courts are still adopting awards in contrast with the ICJ. Italy is committing a wrongful act. Erga omnes: imply that we change our mindset, it’s a specific category of customary norms aimed at protecting the most relevant interests of the whole international community => duties owed to all states. This is what erga omnes means, the fact that there are duties owed towards all parties to the treaty. They provide obligations towards ALL states. If this duty is violated, all the states can react and claim the international responsibility at this breach by the state breaching. Conceptual difference: – Jus cogens - identifies rules that cannot be derogated lawfully, the strength of the norm. – Erga omnes - indicates a structural feature, obligations towards all states and not only the injured one. 27 Logical link, but erga omnes is wider than jus cogens: ALL jus cogens are erga omnes, but not all erga omnes are jus cogens (so far does not protect every fundamental value), but it could happen with the new generation. ex: prohibition of marine pollution. Relations between customs and treaties Customs bind all states and all international organizations and all individuals, while treaties only bind parties to them. They have a specific subjective scope. Strength of customary norms apart from ius cogans all other customary norms are flexible by nature, so they may be derogated by other sources. Is a topic is regulated by customary norm and some treaty also engage in treaty obligation, A treaty concludes a treaty on a certain topic and later concludes a treaty on the same topic. The second treaty partially overlaps with the first treaty, changing the provisions of the first treaty and adds new regulation within the same topic. The EUC concerned the establishment of the internal market, the common commercial policy, and some social legislation. The EU Treaty changed some of the rules of the internal market, also regulated the social legislation and added environmental research, youth etc. for the new regulation only the second treaty can apply. How about the common commercial policy? Which treaty does apply in the relations among the state parties? for which the second treaty provides a different regulations? Always the second treaty. It was clear that the parties intended to terminate the previous treaty. It was not explicitly stated, but it was intended. Relations between treaties. 1. Case 1: same states conclude a treaty on a certain topic, later on they conclude another treaty on the same topic. The latter treaty will prevail => principle of lex posterior. The second treaty partially overlaps, changing the provision of the first one and adds new regulations within the same topic => the second treaty would apply. Incompatibility between a provision of the former and later => the latter applies for the principle of lex posterior. 2. Case 2: Treaty among A B C D, treaty 2 among C D E F. Incompatible treaties with partially coincident parties. C and D - treaty 2 (lex posterior) - if it overlaps and has been concluded later A and B - treaty 1 B and C - treaty 1 A and C - treaty 1 B and D - treaty 1 treaties only bind parties that participate in them. A treaty may include a coordination clause - provision with a coordination mechanism; relations with other treaties. Gives the criteria, indicating which treaty rules apply. 3. Case 3: a state is party to 2 incompatible treaties, with 2 different states. Treaty 1 among A B C D and treaty 2 among A and E. The regulation is different, because it regulates the very same aspects in 2 different contrasting ways. Different specific relations among states. Treaty of environment for ex: should be universal. If they contain an incompatibility, a wrongful act contained in treaty 1 and not in 2, in this case A has to choose which one to violate, either the stricter 1 and also comply with treaty 2. Not always by choice: inevitably international responsibility would arise under the other treaty. 30 Ex. ‘from 1st July 2022 the state parties to this treaty will not apply customs duties anymore in the trade between themselves’. Is it a self-executing norm or not? Yes, it is. If rights and obligations that are provided in a legal provision that is self-executing, benefit the individuals, individuals may rely upon the IL (provision) to claim rights under it, even before domestic courts, directly, without any filter and in front of every organ of the state. (see sentenza 120, 2018) Our legal set of rights and obligations is not given by domestic source only anymore, we do derive rights from IL, and if the source is sufficiently clear, precise and unconditional, we can rely on it directly. Who decides whether a provision is self-executing? What counts is the intention of the parties. if one may reconstruct that the parties intended to fully regulate an issue, and that the provision has a self- executing nature, then everyone in the world has to recognize that provision as self-executing. The intention of the parties is determinant. Whether a treaty has a direct effect is an issue of IL. It depends on the intention of the parties. WTO is not recognized direct effect. Several provisions of EU law do have direct effect. Regulations do have direct effect, and some decision adopted by the EU also have direct effect. But what about dualist states? This also applies to them, but this may only take place if such dualist state has formally introduced such international legal obligation into the domestic legal order. This is an issue of domestic law. To summarize, there are 3 main issues: (1) internationally sourced norms are part of the legal order of the state or not (monist or dualist). Issue of domestic law (2) legal standing recognized to internationally sourced norms. Issue of domestic law (3) direct effect because a norm is self-executing. Issue of IL Territorial sovereignty Contents of IL provide constrains or limitations of the use of force, this is the traditional approach, the limitation of the absolute and free exercising sovereignty of a state. By the use of force both international and domestic is considered. The international use of force is about military forces, while internal use of force is about jurisdiction, the power to exercise governmental function on individual and their property, law making, law assessing and law enforcing. One issue that is extremely important is abstract prescription, rules of domestic law in contrast with IL are not relevant per se, for a violation to IL to exist. What count is conduct, contrary to IL legal obligations. So, for a violation of IL to exist actual conduct is required, and coercion is or may be put in place by state organs. Use of territory There are not states without territory and territorial sovereignty, the right to exclusively exercise jurisdiction on a territorial community. Otherwise, we are talking about IO. Doctrine of domestic jurisdiction: each state has the right to autonomous and supreme execution of public functions within its own borders, with the prohibition of interference by other states. Ex. when French policemen cross the border and capture immigrants that were sleeping in a Susa building, they’re committing an illegal act. (Unless there is consent, but this is another issue). Coercion: the power to enforce, to have rules implemented even through force. This is the internal use of force, the force of police is the biggest example. Two contents of territorial sovereignty which usually go under the Doctrine of domestic jurisdiction: -Right of a state to autonomous exercise public function by within its own frontiers nomos is rule and auto is self, it means being independent and not having superior authority. -Unlawfulness of interference by other States. Two faces of the same coin: supreme autonomous exercise/non-interference. 31 After the fall of the roman empire, territorial sovereignty was conceived a sort of “right to property” by the sovereign; the object of property being the territory and individuals being “attachments’’ to the territory. This conception has evolved over time especially regarding the concept of the individual. Individuals were not subjects at all. VIOLATION OF TERRITORIAL SOVEREIGNTY: how it takes place If we think of the territory in a material way, it occurs when an organ of a foreign state is in the territory of another state without authorization of that state (see the previous example of the french policemen in Italy). We’re talking about non-authorized physical presence. The only possibility for being in a foreign territorial area without permission is when the policemen start following a criminal and have to cross a border in order to capture him; but this is a temporary authorization. Diplomat and consultant agent of a state are entities lawfully present in another state, but they cannot enter the territory and exercise functions without an exchange of consent. SO also here authorization is inclued. We moved from a theory/system of absolute exclusive free exercise of jurisdiction to a restricted exercise of jurisdiction, as regards to forms, ways and consent. Domestic jurisdiction ART 2(4) UN charter “All members shall refrain in the international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.” Customary and treaty norms on: – use of territory (sea, outer, spaces, environment) – treatment of foreigners, human beings (freedom of expression, or to form trade unions), international criminals – treatment of foreign organs, esp. diplomatic and consultant agents (immunities) – treatment of foreign states (immunities) It is important to notice how states’ intervention in the economies has become more and more relevant, (think of covid, energy...) Nowadays the exercise of jurisdiction by a state is shaped by IL, in the past there were very few rules, but now IL is very widespread in every legal field. ACQUISITION OF ADDITIONAL TERRITORY- how it happens – Occupation of terra nullius. This is not likely to occur nowadays since the only terra nullius is the Antarctic continent. – Cession, which is the peaceful transfer of territory (often, in peace treaties after a war, also, in the decolonization process). It is exactly what Ukraine didn’t concess to Russia. We can find many historical examples, like Nice that have been given to French by Italy. – Accretion, when new land is formed (natural phenomena, a volcano that erupts, new island..) and becomes attached to existing land, but there are also artificial accretion (China and Japan). – Subjugation (or conquest), Latin concept, nowadays it is unlawful. – Prescription, legitimization of a doubtful title by the passage of time and the presumed acquisition of the former sovereign. This are concepts from the roman empire and are still relevant today but they are useful categorization just to help us considering and understanding ways of acquiring additional territory. But what is common throughout all these ways of acquiring territory? the fact that it must be verify upon the criterion of effectivity (exercise of effective control). The effective exercise of 32 goverrnment over a territory originates sovereignty over that territory. ex facto oritur jus, “il diritto nasce dal fatto.” When a territory is acquired in violation of IL (which banned the of use of force and established the principle of self –determination); the effectivity criterion applies, so they recognize the existence of sovereignty but the latter is unlawfully exercise So IL imposes a duty of return the territory upon the conqueror, and a duty upon all other states not to recognize legal effects to its governmental acts pertaining to that territory upon all other states and IOS. EX. now there is an agreement between EU and UK since the latter exit the EU, does this agreement cover in his territorial scope the Chagos Island? It exercises effective control but the EU is under a legal obligation not to recognize any legal effect made by the UK on the Chagos Island. Let’s suppose that UK uses Chago Island not only for military support but also for trading, the EU should not give effect to the UK treaty as far as trade provisions are concerned--> no legal effects. EXCEPTION TO THE CRITERION OF EFEFCTIVITY There are border areas or islands that are disputed by order states, EX. French and Italy about Monte Cervino. According to IL what count is a legal title that provides a previous agreement between the states, or predecessor states: boundary treaties, treaties the content of which is the limitation of the territory of the treaty (often interpreted by boundaries awards). Unless one party to the dispute has not shown acquiescence towards the claims of the other party which are based on effectivity. SPECIFIC CASES OF USE OF TERRITORY: LEASES and SERVITUDES Lease and servitudes are both legal rights that states may exercise over the territory of other states. This means that states can lease their territories. “One Belt One Road”, (OBOR) or Belt and Road initiative, is a huge program by China to reconstruct the ancient “via della seta” both by land and sea. From China through Asia and Europe and Africa, and by sea. What if the borrowing state is not able to lay the landing back? China asks for lease of territory, ports, rivers, critical parts of the territory of the state. Another important case is the one concerning China and Montenegro: as Montenegro struggles to stay afloat financially having to repay a large Chinese loan, the EU refuses to help it, providing an excellent opportunity for China to get more than a foothold in the country. The EU affirmed that will not help countries that ignore their advice and proceed with unviable economic projects. China could use Montenegro as its pivot to Europe; more presence in the country could mean greater opportunities for involvement in Europe. Those are rights in rem, attached to the land. So they may be enforced even in case of State succession (we saw state succession in treaties pertaining to territory). So  LEASES= a way of obtaining control of usually strategic points without actually annexing the territory. You have legal title to control something which is not yours and your rights arise from a contract.  SERVITUDES= the territory of one state is under a particular restriction in use by that state in the interests of another state. Landlocked countries: a country is considered landlocked when it is surrounded on all sides by one or more other countries and therefore has no immediate coastline providing access to the oceans. Switzerland is an example, many african countries also, asian countries as well.... Servitude is a right to USE, while Lease implies a strong interference in the jurisdiction so it is more about CONTROL. (Servitudes): – the right to use ports 35 Jurisdiction on establishment and use of artificial islands, installations, structures, scientific research, environmental protection. May adopt laws on several matters, including fishing licenses and fishing seasons. However, the coastal State cannot prohibit or limit freedom of navigation or overflight, and laying of submarine cables and pipelines. Then, we have freedom which is maintained in: – High seas – Seabed of the high sea: proclamation of a “common heritage of mankind regime”, patrimonio comune dell’umanita’. Then there are zones with freedom: in the high seas and for the seabed of the high sea. Seabed is the plain part of the land under the sea, not part of continents, is a plain portion, that is not water. This seabed is a common heritage of mankind. This freedom principle implies equal rights of every state of the world, even to landlocked countries: navigations, overflight, laying of cables, building of artificial islands and installations, fishing and scientific research. But there is limitation: the interests of the other states must be respected. Reserved for peaceful purposes, it cannot be claimed by any state, automatic invalidity of any claim by a state over the high seas (contrary to the principle of domination). Obligation upon all states of preserving and protecting marine environments. In case of distress/a problem, there is a duty of assistance. Jurisdiction of a state only on ships with its flag. Duty under IL to cooperate in the repression of piracy, slavery, unauthorized broadcasting. Exception to the exclusivity of the flag-state jurisdiction. INTERNATIONAL ENVIRONMENTAL LAW Relatively new field of IL, it regulates the way a state may use its territory for the aims of environmental protection. We have new needs plus a need for cooperation, so automatically this led to new rules created by IL, either customary or treaties. The protection of the environment has become a common concern of the state and society, pollution emerged: rise of the Green parties, so the whole international community had a common interest and concern. The main type of tool of IL to deal with this matter –multilateral treaties/agreements, expressing the will of almost all states in the world to coop through IL rules. However, there are few customary norms. The treaty imposed the law in this field. Body of law set a treaty level by multilateral treaties, developed through 4 main conferences by the UN: – 1972, Stockholm – 1991, Rio de Janeiro – 2002, Johannesburg – 2022 May, Stockholm Occasion for issuing declarations-soft law tools, not binding like treaties, their content is about principles. Declaration enunciating principles, it does imply they exist. Or the declaration on the contrary may prompt a principle to arise. 26 principles were written, then established themselves as principles of IL, gaining strength as principles of IL. – 1992 Convention on Biological Diversity-2 protocols, additional treaty law – 2000 Cartagena Protocol on Biosafety – 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable sharing of Benefits Arising from their Utilization (ABS) 36 – 1992 UN Framework Convention on Climate Change- framework convention is a technique, especially used in environmental law, in order to have the widest possible participation of states to the convention and the international coop, which is put in place through treaty law. Establish general principles and obligations. This way many states, possibly all states of the world are bound at least by these principles and general obligations. Then more detailed obligations are established in protocols. Protocols may enter into force, even if only a subset of the contracting parties to the framework convention is bound to them. Detailed rules need appropriate formulation based upon scientific expertise and research and might also imply technical economical resources, to implement them. Not all states in the world are able to be bound by these rules at the same time. Protocols enter in force once the majority of the states have agreed that they enter into force. – 1997 Kyoto Protocol – 2015 Paris agreement There are 6 main principles of international environmental law. Only the 1st one corresponds to a rule of customary law. It’s the only customary rule certainly existing on the protection of the environment. -> 1. ‘prohibition of transpandary pollution’. When pollution that originates in a country might cost ? in another country. it’s not about protecting the environment in a specific country per se, it. It addressed the conduct of states in regulating activities on their territory. Switzerland, for example, has to regulate the activity of Swiss companies that cause pollution the Rein river to reach the territory of Germany, France.. -> free use of territory by a states should not be exercised to the detriment of other states. It doesn’t correspond to the idea that nowadays we have on environmental protection tho. ➔ The smelter arbitral tribunal decision 2. ‘duty of information and cooperation’: principle on information and cooperation. States are recognized as free to use their natural resources, but in a way that doesn’t contrast interests of other states. ->Nuclear law, a branch of IL. It’s a convention dating back to 1963 for liability on nuclear damage, and the Chernobyl accident prompted the need for a new right: a right to environmental information. Information really used to pass through diplomatic relations, so citizens weren’t informed. In that case, citizens kept eating nuclearly polluted vegetables for days, because they weren’t informed. This right has been developed through treaty law, and the most advanced treaty is the Aarhus Convention. It's a regional treaty that applies to Europe. 3 principles are established:  Access to environmental information. Individuals, under the jurisdiction of the states bound by this convention, have a right (by means of treaty law) to obtain information about the environment, either within 1 month or without the need to say why they require that information. Authorities must publicly disseminate environmental information.  Public participation in decision making. The public affected by environmental damages, but also non-governmental organizations that are active to promote and protect collective interest concerning the environment. These 2 subjects in particular have to be notified of legislative proposals, plans, programs..  Access to justice in environmental matters. Access must be challengeable if they have been adopted without respecting the other two principles. 37 3. ‘common but differentiated responsibility’: 4. ‘sustainable development’: a concept that arose in the 1980’s. ‘sustainable development is development that meets the needs of the present, without compromising the ability of future generations to meet their own needs’. -> intergenerational element 5. ‘precautionary principle’: about the attitude states must adopt precautionary measures even when there is no scientific proof of the efficacy of these measures. In many cases preventing measures may conflict with other international obligations of states. 6. ‘the polluter pays principle’. Expressed in the Rio declaration. If you pollute you should bear the cost of managing the consequences of it. Treatment of aliens Aliens, foreigners because of our nationalities. Nationality - the legal link between an individual and a state. Legal instrument for delimiting jurisdiction of a state upon individuals. How is it put in place? It’s a concession by the state. What are the criteria the state bases itself to confer upon us nationality? Ius soli or ius sanguinis. Individuals in a country where they are not citizens => alien, non nationality. Immigration - domestic policy, IL does not outlaw it. Kant: people are universal citizens, therefore immigration does not exist and we only move, immigration would not exist under this conception. IL is built upon such a conception, only putting some limitations on the freedom of states. In the past individuals were considered attachments to the territory of a sovereign/belongings of a state. Because of this, they used to be relevant as aliens. Old set of rules of IL on the treatment of aliens. Both set of substantive norms (what states can do about the treatments of aliens) and procedural guarantees, like diplomatic protection. Host state and state of nationality, to identify the states involved when we talk about foreigners. Substantive norms - guided by 2 principles. They limit the freedom of a state to act in the treatment of aliens. 1. the host state cannot require from an alien more than it is justified by their attachment to that state or to its community. “Principio dell’attacco al territorio”. ex: if I do not have a strong link with the community or institutions of the state, I cannot be asked to enroll in the army, I cannot be subject to taxation, unless I make profits from these territories. Treaties on double taxation - because the gains that originate in a state, may be subject in principle to a double taxation. 2. because equally sovereign states must respect one another under IL, a state which has an alien on its territory, is under a duty to protect the physical and natural person and the property of that alien. It must provide suitable measures to prevent and repress offenses against aliens’ persons and property. Suitability is commensurate with the protection ensured to all individuals in civilized nations. How? With the police system+ the judicial system. This is an absolute standard - fixes the conduct. A state is committing an internationally wrongful act, if there is lack of diligence of the state, that could have prevented the damage to the alien. These 2 principles constitute a customary rule: international minimum standard of treatment of aliens - absolute standard. In the past Argentina was a persistent objector of these rules. – Preventive measures - a state must fulfil the need of order and security of the society under its control, it must put in place a system of policy that meets the need for security and protection of aliens. Only aliens count, individuals come into relevance only because they are aliens and not citizens. – Repressive measure - a state must put in place and operate a judicial system accessible to foreigners. Otherwise - specific wrongful act => denial of justice Expropriation and nationalisation Expropriation is a distinct takeover of an individual’s property. It’s the transfer of the title of property from an individual, a natural person or company or NGO, to the state. 40 between universal treaties (open to signature to all states) and regional treaties (concerning a regional area of the world). There are also treaties that apply to a specific category of people (ex. disabled people). The culture of human rights in Asia is different from the rest of the world. There’s no treaty mechanisms. Are human rights universal or culturally based? At the international level, the universality of human rights has ben affirmed b the universal declaration of human rights, and again in 1993 at the world conference on human rights in Vienna. According to the final act of the convention all human rights are universal, indivisible, interdependent and interrelated. According to some people, human rights are the product of a western invention. -> attempt to impose European values everywhere in the world. Other argue that human rights must be viewed and applied having regard to cultural specificities. The universal declaration is a resolution. It’s not binding per se, it’s a soft law. However, apart from the legal force of the resolution per se, it’s now considered that the rights that are recognized under the universal declaration have gained customary status, or at least some of them. Control mechanisms: once we identify a right in a legal order, and we recognize it through positive law, the protection of such right also needs a guarantee. Each human rights tool provides for recognition of human rights and a procedural mechanism. These guarantees can be classified according to their nature - judicial or non-judicial - and if compulsory or optional. They set procedures whereby states are being put under control as regards compliance with its human rights obligations. Each treaty has its own procedures. There are as many mechanisms as treaties. Each treaty establishes a treaty body: an organ of functions -> a body which is attributed functions through monitoring procedures. At the UN level there are the so called ‘charter procedures’. These do not pertain to a specific human rights treaty, they are not established by a human rights treaty, but they are established by the UN. Bodies: – Human rights council: subsidiary body of the general assembly, upon resolution of the GA. Its membership is peculiar, it has 46 members elected by the GA for three years. It manages several procedures. Universal periodic period whereby states control each others. It’s based one examination of information and dialogue. It has political support. It really expresses what states are willing to discuss. There are only regional courts and not universal one. – Courts, like the European court of human rights, In America and Africa there’s a commission of independent experts, and the application of a filtering- mechanism system. Filtering individual applications before the court. They are sent to the commission, which decides which one should be tried before a court. Then we find bodies associated with the covenant, composed by independent experts that control the respect of Human Rights of the contracting states through two procedures: State reporting: on a regular basis states are under the duty to send a report on their observance oh HR obligations. This is a mandatory procedure. Optional procedure: only the states that have ratified the protocol to the treaty establishing it, or which have accepted the part of the treaty establishing it, are bound by this procedure. Contents of IL: State’s immunity State’s immunity is a core principle of international law. Notion: it’s the immunity of a state (as a juridical person) from the jurisdiction of the other state (i.e., a state cannot be brought to court in a foreign state). No proceeding can be started against the sovereign state. – immunity from adjudicative jurisdiction: an act of a state or attributable to a state – cannot be subject to judicial review by the courts of another state. – immunity from execution 41 This is directly linked to the principle of sovereign equality of States (states are not a subject of the coercive execution of the other state): principle of par in parem non habet jurisdictionem = ‘equals have no sovereignty over each other’. Cf. ICJ, 2012 judgment on Jurisdictional Immunities of the State (Germany v. Italy) overview Italy was occupied by the Nazis regime, many people were deported in Germany where they were forced to provide forced labour for free. The survivors instituted proceedings in Italian courts against Germany, claiming for monetary reparation for the damage caused by the events that were put in place under the Nazis regime. Italian courts were confronted with the problem of sovereign immunity from the Italian jurisdiction. THE COURT OF CASSATION CONSIDERED THAT THE NAZIS ATROUSITIES WERE CONTRARY TO IUS COGENS and the court of cassation developed this theory according to which immunity shall not be recognized in case of GROSS VIOLATIONS) negotiation for the lump-sum agreement had already been concluded. THEORETICAL CONSIDERATION ON SOVEREIGN IMMUNITY FROM ICJ The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. This principle has to be viewed together with the principle that each State possesses sovereignty over its own territory and that there flows from that sovereignty the jurisdiction of the State over events and persons within that territory. Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it. Each state is sovereign in its territory, and it has power over its actions there, its citizens. But because of the flaws of sovereign equality, immunities are a departure from territorial sovereignty. According to international law, State immunity, where it exists, is a right of the foreign State Cf. ICJ, Germany v Italy: As between Germany and Italy, any entitlement to immunity can be derived only from customary international law, rather than from a treaty. Although Germany is one of the eight States parties to the European Convention on State Immunity of 16 May 1972, Italy is not a party, and the Convention is accordingly not binding upon it. Neither State is party to the United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted on 2 December 2004, which is not yet in force in any event. Neither Germany nor Italy has signed the Convention. => CUSTOMARY LAW APPLIED BETWEEN GERMANY AND ITALY BECAUSE THEY ARE NOT PARTS OF THE SAME TREATIES. It follows that the Court must determine, in accordance with Article 38 (1) (b) of its Statute, the existence of “international custom, as evidence of a general practice accepted as law” conferring immunity on States and, if so, what is the scope and extent of that immunity. How must customary rules be detected? By general practice of states accepted as law. (Practice and conviction that this is required by law/opinio iuris) In the present context, State practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States, first in the course of the extensive study of the subject by the International Law Commission and then in the context of the adoption of the United Nations Convention. Opinio juris in this context is reflected in particular in the assertion by States claiming immunity that international law accords them a right to such immunity from the jurisdiction of other States ; in the acknowledgment, by States granting immunity, that international 42 law imposes upon them an obligation to do so ; and, conversely, in the assertion by States in other cases of a right to exercise jurisdiction over foreign States. Elements that support the existence of customary law on state immunity Although there has been much debate regarding the origins of State immunity and the identification of the principles underlying that immunity in the past, the International Law Commission concluded in 1980 that the rule of State immunity had been “adopted as a general rule of customary international law solidly rooted in the current practice of States” (…). That conclusion was based upon an extensive survey of State practice and, in the opinion of the Court, is confirmed by the record of national legislation, judicial decisions, assertions of a right to immunity and the comments of States on what became the United Nations Convention. That practice shows that, whether in claiming immunity for themselves or according to others, States generally proceed on the basis that there is a right to immunity under international law, together with a corresponding obligation on the part of other States to respect and give effect to that immunity. Italy should deny having jurisdiction, while Germany has a right to an immunity. Under current customary international law, immunity of states is NOT ABSOLUTE but RESTRICTED (relative immunity):  states are entitled to immunity from jurisdiction for acta iure imperii, while  immunity for acta iure gestionis has been limited The theory of restrictive immunity was developed by some courts, notably Italian and Belgian courts, from the 1920s, given the increasing engagement of states into economic activities (when a state acts as a private person not as a sovereign, it should not enjoy immunity). They argued that such activities did not express sovereign functions thus were not linked to the principle of sovereign equality of states. ➔ as economic operators there is NO immunity Distinction between acta iure imperii and ure gestionis The criterion is that of the NATURE OF THE STATE ACT, rather than for that of its purpose, so (…) whether the acts in question fall to be assessed by reference to the law governing the exercise of sovereign power (jus imperii) or the law concerning non‑sovereign activities of a State, especially private and commercial activities (jus gestionis). To the extent that this distinction is significant for determining whether or not a State is entitled to immunity from the jurisdiction of another State’s courts in respect of a particular act, it has to be applied before that jurisdiction can be exercised. – Examples of iure imperii acts: judicial and political activities; military training activities Case Germany v Italy: The acts of the German armed forces and other State organs which were the subject of the proceedings in the Italian courts clearly constituted acta iure imperii. – Examples of iure gestionis: the supply of commodities or services, the rent or sale of properties, loans and financial transactions Cf. Italian Court of Cassation, Borri v Argentina: issuance of foreign bonds is jure gestionis but moratoria on payment of bonds enacted by law amounts to the exercise of sovereign power. State default might be seemed as an act jure imperii. Acta jure imperii: are States always entitled to immunity?? (issue of the extent of the immunity) ICJ, Germany v Italy: the Court must approach the question raised by the present proceedings, namely whether that immunity is applicable to acts committed by the armed forces of a State (and other organs of that State acting in co‑operation with the armed forces) in the course of conducting an armed conflict. Germany maintains that immunity is applicable and that there is no relevant limitation on the immunity to which a State is entitled in respect of acta jure imperii. Italy, in its pleadings before the Court, maintains that Germany is not entitled to immunity in respect of the 45 – Whatever its character as an organ of the central government or of a territorial unit of the State Organ= any person or entity which has that status in accordance with the internal law of the state. Also de facto organs, which are totally dependent on a de iure organ of the State. Also conduct adopted in violation of domestic law or ultra vires. (Ultra Vires is a Latin phrase meaning literally “beyond the powers”, if an act requires legal authority and it is done with such authority, it is characterized in law as intra vires “within the powers”. Acts that are intra vires may equivalently be termed “valid” and those that are ultra vires “invalid”). Then conduct of personnel in contrast with instructions. What if Italy adopts a framework legislation on the hunting of birds and the Piedmont region implements a local legislation on the hunting of birds in contrast with the national one? Let’s suppose there is an international obligation on Italy concerning the protection of birds, is Italy internationally responsible by way of the conduct of Piedmont region? yes. Art 5 ARS: conduct is considered state conduct if there is conduct of persons or entities exercising elements of governmental authority. The entity is not an organ of the state but it is empowered by the law of the state to exercise some specific elements of the governmental authority. And is acting in that capacity in the particular instance e.g. air companies managing immigration or customs controls. The state is sovereign and it may exercise sovereignty directly or by entrusting non state organs with some elements of such sovereignty. Art.8 ARS: conduct directed or controlled by a State of a (private) person or group of persons, mercenaries who are paid for fighting alongside within the army of a State or under the direction or control of that State. According to ICJ, the degree of control requires EFFECTIVE control and direction, overall control is not enough. Example of military and paramilitary activities in Nicaragua. While ICTY considered that overall control is enough, (Tadic case). Art 11 ARS: conduct acknowledged and adopted by a State as its own conduct. Example of the crisis of US hostages in Teheran; the Court noted that certain organs of the Iranian State had endorsed the acts complained of and decided to perpetuate them, so that those acts were transformed into acts of the Iranian State. There has been a judgement by the ICJ, especially under International human rights law a new obligation is developing, to manage a State governments have to regulate conduct so they not damage individuals even abroad, outside their country. If a corporation adopts acts that damage individuals and also environment the International responsibility of the State arises. More generally, apart from criteria under art.8 and 11 ARS, anytime a State has not adopted measures preventing private persons from injuring individuals, foreign organs and foreign States there is the international responsibility of a states for acts of private persons. Art 12 ARS: Existence of a breach of an international obligation. There is a breach of an international obligation by a State when an act of that State is not in conformity with what is requires of it by that obligation, regardless of its origin or character. This refers to any kind of obligation, customary treaty ecc... whatever the importance of rule which is violated. 46 Types of breaches according to the type of obligation: – Active: when the international rule prohibits a given conduct which the state adopts. – Omission: the international rule obliges the State to adopt certain measures which the state has not adopted. (In many cases the situation is a mixed one.) ..and according to the nature of the obligation: – breach of means: if the rule imposes only a certain type of conduct – breach of results: if the rules imposes to achieve a certain result, irrespective of the means by which it is achieved. BREACH OF IL Article 13 --> international obligation in force for a state. An act of a State does not constitute a breach of an international obligation unless the state is bound by the obligation in question at the time the act occurs. this is the. tempus regit actum rule. “Il tempo regola l’atto”, L'atto è regolato dalla legge vigente, nel momento in cui è posto in essere. Art. 14 --> extension in of the breach of an international obligation  Instant breach: The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue (instant breach).  Continuative breach: the breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation. These are the two rules identified tempus commissi delicti, when the wrongful act occurs. It allows to establish what rules applied and the reparation, and at what time the State was bound to the IL obligation. There are some circumstances precluding wrongfulness: Arts 20-27 ARS, important !! in particular see 23-24-25. CHAPTER V –CIRCUMSTANCES PRECLUDING WRONGUFLNESS- Art 20 Consent: Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent. Art 21 Self-defence: The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in conformity with the Charter of the United Nations. (Ukraine is using self-defence.) Art 22 Countermeasures in respect of an internationally wrongful act: The wrongfulness of an act of a State not in conformity with an international obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken against the latter State in accordance with chapter II of part three. Art 23 Force majeure: 1. The wrongful of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure, that is the occurrence of an 47 irresistible force or of an unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation. Paragraph 1. does not apply if: a) the situation of force majeure is due, either alone or in combination with other factors, to the conduct of the State invoking it, or b) the State has assumed the risk of that situation occurring. Art.24 Distress: 1. The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the author of the act in question has no other reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons entrusted to the author’s care. Paragraph 1 does not apply if: a) the situation or distress is due, either alone or in combination with other factors, to the conduct of the State invoking it, or b) the act in question is likely to create a comparable or greater peril Art.25 Necessity: 1. Necessity may notbe invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: a) is the only way for the State to safeguard an essential interest against a grave and imminent peril and b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. 2.In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: a) the international obligation in question excludes the possibility of invoking necessity, or b) the State has contributed to the situation of necessity Art 26 Compliance with peremptory norms: nothing in this chapter precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law. Art 27 Consequences of invoking a circumstance precluding wrongfulness: the invocation of a circumstance precluding wrongfulness in accordance with this chapter is without prejudice to: a) compliance with the obligation in question, if and to the extent that the circumstance precluding wrongfulness no longer exists, b) the question of compensation for any material loss caused by the act in question. We use the expression ‘content’ because it means rules that govern State responsibility in particular obligations. Art. 28-41: content of the IR of a State, i.e. the legal consequences of an internationally wrongful act If a State acts in a way that contrasts with one of the International legal obligations, its IR arises out of that wrongful act and this determines legal consequences: rules, new obligations that IL imposes upon that State. This new obligation is of a different category than the obligation that was violated by the State. There is a distinction usually made between Primary obligations and obligations we have seen so far (how to conclude treaties, respect self-determination, immunities...). Then, the violation of these primary obligations give rise to other obligations called Secondary obligations, that regulate how a State which is in violation of IL must behave. 50 Art 42 ARS invocation of responsibility by an injured State: A State is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: – that State individually, or – a group of States including that State, or the international community as a whole, and the breach of the obligation: (i) specifically affects that State or (ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation Example--> Customary rules on the treatment of aliens, among these rules there is the rule of expropriation lawful only upon payment of compensation. Let’s suppose that Italy expropriates a Canadian citizen without paying compensation, in this case of which State is the obligation to treat aliens in such a way as to pay compensation? which is the state to which the obligation to expropriate upon compensation is owed? the state of nationality of the citizen. Canada in this case. Or, if there is a breach of the principle of territorial integrity of the injured State is the State territory which has been unlawfully occupied. Art 46 ARS plurality of injured states: Where several States are injured by the same internationally wrongful act, each injured State may separately invoke the responsibility of the State which has committed the internationally wrongful act. Procedural issues have been part of customary norms on international responsibility of the state: Art 43 ARS: notice of claim by an injured State: 1. An injured State which invokes the responsibility of another State shall give notice of its claim to that state 2. The injured State may specify in particular: a) the conduct that the responsible State should take in order to cease the wrongful act, if it is continuing b) what form reparation should take in accordance with the provisions of part two Art 48 ARS Invocation of responsibility by a State other than an injured State: 1. Ant State other than an injured one is entitled to invoke the responsibility of another State in accordance with paragraph 2 if: a) the obligation breached is owed to a group of states including that State, and is established for the protection of a collective interest of the group or b) the obligation breached is owed to the international community as a whole 2. Any state entitled to invoke responsibility under paragraph 1 may claim from the responsible State: a) cessation of the internationally wrongful act, and assurances and guarantees of non- repetition in accordance with Art.30, and b) performance of the obligation of reparation in accordance with the preceding articles, in the interest of the injured State or of the beneficiaries of the obligation breached. 3. The requirements for the invocation of responsibility by an injured State under Arts, 43, 44 and 45 apply to an invocation of responsibility by a State entitled to so under paragraph 1. Erga omnes obligation--> ex. genocide, chago islands in this case the int responsibility state for a breach of the principle of state determination and the corresponding obligation to respect it, not to occupy the territory unlawfully, is UK. while the injured state is Mauritius. Principle of self-determination and the obligation to respect this principle is erga omnes. 51 what may be claimed from the responsible state:  cessation of the internationally wrongful act, and assurances and guarantees of non repetition, and  performance of the obligation of reparation, in the interest of the injured State or of the beneficiaries of the obligation breached. What does the injured state do in order to obtain the responsible state to stop breaching obligation, giving reparation etc..? How can the international responsibility of a State be implemented in the absence of a judicial system? Mainly adopting countermeasure: main reaction to an international wrongfully act is a non- performance of int obligation of the State taking the measures towards the responsible State. i.e. an otherwise unlawful act-this is why countermeasures are among circumstances precluding wrongfulness. See Art 54 ARS concerning measures taken by States other than an injured State: This chapter does not prejudice the right of any State, entitled under article 48, paragraph 1, to invoke the responsibility of another State, to take lawful measures against that State to ensure cessation of the breach and reparation in the interest of the injured State or of the beneficiaries of the obligation breached. Unless otherwise foreseen by specific customary norms: collective self-defence, which requires a request by the attacked State. Issue: The US may decide not to apply the MFN rules (provided under IL) in the relations between US and Russia, it may withdraw Russian’s imports. But, the US is not the injured State, Ukraine is; so the issue is if US can in this case adopt countermeasures. Let’s see the other cases other than collective self-defence, and if the US situation fit in them: – Not self defence cause the US did not take part in the hostility – military aid to liberation movements from foreign occupation, us decision does not fit this neither – Non recognition of acts of state not respecting self determination (nemmeno qui) so.. is the US reaction lawful? issue for the next lesson, whether economic sanctions adopted in this regard can be considered legitimate under IL. And, within treaty regimes in particular human rights treaty. e.g. some conventions allow recourse to inter-state dispute settlement mechanism against a state violating an obligation thereof, by all contracting parties, not only the specifically affected party. Art. 33 ECHR. IL put limits on countermeasures. Art 49-50 ARS: countermeasures can be adopted for the time being. They cannot be adopted forever because they have specific functions for specific circumstances, in order to induce that State to comply with its obligations. They can be maintained only for the time necessary or until the State has compiled with the secondary obligation. -as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question Art 51 ARS on proportionality: countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question. (important!!) -does not need to correspond to the breached obligation. Art 50 ARS obligations not affected by countermeasures: 1. Countermeasures shall not affect: a) the obligation to refrain from the threat or use of force as embodied in the Charter of the UN b) obligations for the protection of fundamental human rights c) obligations of a humanitarian character prohibiting reprisals 52 d) other obligations under peremptory norms of general IL 2. A state taking countermeasures is not relieved from fulfilling its obligations: a) Under any dispute settlement procedure applicable between it and the responsible State b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents Art 52 ARS conditions relating to resort to countermeasures: before taking countermeasures a State shall (unless urgent measures are necessary to preserve one’s right): – call upon the responsible State to fulfil obligations arising from an internationally wrongful act (art 48 ARS). – notify the responsible State of any decision to take countermeasures and offer to negotiate with that State. Countermeasure cannot be taken or must be suspended if the internationally wrongful act has ceased; and the dispute is pending before a court or tribunal which has the authority to make decisions binding on the parties Art. 53 ARS termination of countermeasures: Countermeasures shall be terminated as soon as the responsible State has complied with its obligations under part two in relation to the internationally wrongful act. Retortion is just an unfriendly behaviour, perfectly lawful but just unfriendly. the most famous type of retortion is economic sanctions: often, they are contrary to international obligations on economic relations; in such cases it is difficult to distinguish between retortion and countermeasures. International dispute resolutions Among states, disputes may arise in the life of international society. What are the possible lawful means of resolutions? The only lawful means of resolutions under IL are diplomatic and/or jurisdictional means. Until WW1 force was considered as a mean for solving disputes. The outlaw of force in international relations after WW1, especially with the UN Charter does not allow states to solve their disputes through force. The only legitimate use of force is through self-defence. Self- defence may occur only as a response to an attack, an armed attack that violates IL. In order to refer a dispute to a third subject, to an international tribunal, an agreement of the states in dispute must exist. There is no way of solving a dispute through an adjudication without agreement of the parties of the dispute. Notion of international dispute: Permanent court of international justice under the league of nations, Mavromattes case, 1929. A dispute - disagreement on a point of law or fact, a contrast, an opposition of legal arguments or interests between 2 parties. It encompasses both legal and political disputes. Purely political needs are solved through diplomatic means, rather than adjudicative. States must solve the disputes by peaceful means - art 2, par 3 UN Charter. At least UN members have such an obligation, but this is also a customary rule of IL, therefore ALL states of the world must comply with such an obligation. This has been established after the 2 World Wars. Peaceful means: 1. diplomatic means - the purpose is to facilitate the conclusion of an agreement between the parties to a dispute. The outcome is to reach an agreement, of a compromised nature, a new 55 made by the panel of judges at the moment. The Court's decisions are an authoritative interpretation of the law, but they do not have effects. 2 functions: 1. contentious - principle of IL, the court might exercise its jurisdiction only if there has been consent by the parties to a dispute to submit that dispute to the court. The court works on the basis of an agreement by the parties to arbitrate. What are the forms of expressing consent? After a dispute has arisen, the parties may conclude an agreement that invests the court with jurisdiction to solve the dispute. Cases in which treaties with specific issues, contain a clause according to which each and every dispute on the interpretation and application of the treaty, will be submitted to the ICJ. In the premises of such clauses, the parties to the treaties in dispute cannot refer that dispute to another court, unless they modify the treaty OR unless this same clause states the possibility of the parties to choose otherwise for each specific dispute. There also might be a treaty of judicial settlement, that states where and how the dispute will be resolved. Art 36, par 2 - unilateral declaration of acceptance of the jurisdiction of the ICJ. ‘The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court’. A State accepts the jurisdiction of the Court in its relations with other states that have made an identical declaration - open way of agreeing/indirect mutual consent. This declaration can be limited, ratione temporis (excluding disputes arising before a certain date) and ratione materiae (excluding disputes on territorial sovereignty). Subject matter of the case: The ICJ can be called on to exercise its jurisdiction for: a. the interpretation of treaty, b. any question of IL, c. the exercise of facts which, if proved, would constitute international wrongful acts, d. the nature and extent of the reparation due as a result of an internationally unlawful act - obligation to make reparation for the injury. The effects of ICJ rulings - art 59 statute, the decision of the court has no binding force except between the parties and in respect of that particular. The judgments of the ICJ, therefore, do not have ultra partes value. that is, they are not binding for other cases, even between the same parties. There is no system of precedent, stare decisis does not apply. This does not mean that the decisions of the ICJ have no weight even beyond the specific case resolved. Often, indeed, adopted decisions are reaffirmed by the Court itself. Contribute to the creation of new general international rules. The judgments of the court - the court gives reasons and then we have the operative part - conclusions of the court. There might also be separate or dissenting statements and opinions. The operative part is binding. The judgment has the force of res judicata - final and without appeal. But if the party does not understand parts of the judgments, they may unilaterally apply to the court for an interpretation and revision and a new fact is discovered. Enforcement of ICJ judgments - art 94, par 1: 1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations, or decide upon measures to be taken to give effect to the judgment - lex specialis on the implementation of international responsibility. Police body without coercive powers, makes recommendations and decides upon measures. However, there is no world police, there is no authority to lawfully use force to have a judgment implemented. Transformation of the UN charter in domestic law, does not concern art 94. No mechanism is provided for the Court to monitor the effective implementation of the judgment. 56 2. consultative - from judgments, to advisory opinions. Who may request an opinion? ONLY the GA, SC and other organs of the UN and specialized agencies, within the scopes of their activities. Subject matter - “any legal matter”: when requested by the General Assembly or the Security Council; "Legal questions arising in the course of their respective activities”: when requested by other organs of the United Nations or the Specialized Institutes. They are advisory and not binding, they are very authoritative. The use of force in international law In classical IL, in the Westphalia system, the use of force was as a war type violence: considered a mean of dispute resolution, it was considered lawful and indeed a feature of international relations. Then, from the end of the WW1 progressive erosion and dismantlement of this conception have occurred, until prohibition of the use of force by the Charter of the United Nations. In all cases a State may try to solve disputes with another State without the use force. Art 2 para 4 UN Charter, preamble: (Force is military force, not considering economic or political force). “To ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest”. Aggression is not a synonym of force, because it is more specific, it is the most serious and dangerous form of the use of force. Insurgents starting an armed fight against the government, the government using armed force against insurgents--> this is not the force taken into consideration under IL. But what is the personal scope? there are plenty manifestations of recourse to force, but indeed this customary rule only pertinent to armed operations by States and against States. What about non-State actors? (Bin Laden, terrorist attacks etc. on the territory of another state) are private individuals bound to the rule on prohibition? According to the ICJ, acts of violence by non state actors can only become relevant as amounting to an armed attack if they are attributable to a State. And here arises the responsibility of State. Legal consequences of the construction of a wall in the occupied Palestinian Territory- compulsory reading –overview and para 139: By resolution ES-10/14, adopted on 8 December 2003 at its Tenth Emergency Special Session, the General Assembly decided to request the Court for an advisory opinion on the following question : “What are the legal consequences arising from the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, as described in the Report of the Secretary-General, considering the rules and principles of international law, including the Fourth Geneva Convention of 1949, and relevant Security Council and General Assembly resolutions ?” The resolution requested the Court to render its opinion “urgently”. The Court decided that all States entitled to appear before it, as well as Palestine, the United Nations and subsequently, at their request, the League of Arab States and the Organization of the Islamic Conference, were likely to be able to furnish information on the question in accordance with Article 66, paragraphs 2 and 3, of the Statute. Written statements were submitted by 45 States and four international organizations, including the European Union. At the oral proceedings, which were held from 23 to 25 February 2004, 12 States, Palestine and two international organizations made oral submissions. The Court rendered its Advisory Opinion on 9 July 2004. The Court began by finding that the General Assembly, which had requested the advisory opinion, was authorized to do so under Article 96, paragraph 1, of the Charter. It further found that the question asked of it fell within the competence of the General Assembly pursuant to Articles 10, paragraph 2, and 11 of the Charter. Moreover, in requesting an opinion of the Court, the General Assembly had not exceeded its competence, as qualified by Article 12, paragraph 1, of the Charter, 57 which provides that while the Security Council is exercising its functions in respect of any dispute or situation the Assembly must not make any recommendation with regard thereto unless the Security Council so requests. The Court further observed that the General Assembly had adopted resolution ES-10/14 during its Tenth Emergency Special Session, convened pursuant to resolution 377 A (V), whereby, in the event that the Security Council has failed to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly may consider the matter immediately with a view to making recommendations to Member States. Rejecting a number of procedural objections, the Court found that the conditions laid down by that resolution had been met when the Tenth Emergency Special Session was convened, and in particular when the General Assembly decided to request the opinion, as the Security Council had at that time been unable to adopt a resolution concerning the construction of the wall as a result of the negative vote of a permanent member. Lastly, the Court rejected the argument that an opinion could not be given in the present case on the ground that the question posed was not a legal one, or that it was of an abstract or political nature. Having established its jurisdiction, the Court then considered the propriety of giving the requested opinion. It recalled that lack of consent by a State to its contentious jurisdiction had no bearing on its advisory jurisdiction, and that the giving of an opinion in the present case would not have the effect of circumventing the principle of consent to judicial settlement, since the subject-matter of the request was located in a much broader frame of reference than that of the bilateral dispute between Israel and Palestine, and was of direct concern to the United Nations. Nor did the Court accept the contention that it should decline to give the advisory opinion requested because its opinion could impede a political, negotiated settlement to the Israeli-Palestinian conflict. It further found that it had before it sufficient information and evidence to enable it to give its opinion, and empha- sized that it was for the General Assembly to assess the opinion’s usefulness. The Court accordingly concluded that there was no compelling reason precluding it from giving the requested opinion. Turning to the question of the legality under international law of the construction of the wall by Israel in the Occupied Palestinian Territory, the Court first determined the rules and principles of international law relevant to the question posed by the General Assembly. After recalling the customary principles laid down in Article 2, paragraph 4, of the United Nations Charter and in General Assembly resolution 2625 (XXV), which prohibit the threat or use of force and emphasize the illegality of any territorial acquisition by such means, the Court further cited the principle of self- determination of peoples, as enshrined in the Charter and reaffirmed by resolution 2625 (XXV). In relation to international humanitarian law, the Court then referred to the provisions of the Hague Regulations of 1907, which it found to have become part of customary law, as well as to the Fourth Geneva Convention of 1949, holding that these were applicable in those Palestinian territories which, before the armed conflict of 1967, lay to the east of the 1949 Armistice demarcation line (or “Green Line”) and were occupied by Israel during that conflict. The Court further established that certain human rights instruments (International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, United Nations Convention on the Rights of the Child) were applicable in the Occupied Palestinian Territory. The Court then sought to ascertain whether the construction of the wall had violated the above- mentioned rules and principles. Noting that the route of the wall encompassed some 80 per cent of the settlers living in the Occupied Palestinian Territory, the Court, citing statements by the Security Council in that regard in relation to the Fourth Geneva Convention, recalled that those settlements had been established in breach of international law. After considering certain fears expressed to it that the route of the wall would prejudge the future frontier between Israel and Palestine, the Court observed that the construction of the wall and its associated régime created a “fait accompli” on the ground that could well become permanent, and hence tantamount to a de facto annexation. Noting further that the route chosen for the wall gave expression in loco to the illegal measures taken by Israel with regard to Jerusalem and the settlements and entailed further alterations to the demographic composition of the Occupied Palestinian Territory, the Court concluded that the construction of the wall, along with measures taken previously, severely impeded the exercise by the Palestinian people of its right to self-determination and was thus a breach of Israel’s obligation to respect that right. The Court then went on to consider the impact of the construction of the wall on the daily life of the inhabitants of the Occupied Palestinian Territory, finding that the construction of the wall and its 60 persuasive evidence to conclude that officers and soldiers of the UPDF, including the most high- ranking officers,had been involved in the looting, plundering and exploitation of the DRC’s natural resources and that the military authorities had not taken any measures to put an end to these acts. Uganda was responsible both for the conduct of the UPDF as a whole and for the conduct of individual soldiers and officers of the UPDF in the DRC. This was so even when UPDF officers and soldiers had acted contrary to instructions given or had exceeded their authority. The Court found, on the other hand, that it did not have at its disposal credible evidence to prove that there was a governmental policy on the part of Uganda directed at the exploitation of natural resources of the DRC or that Uganda’s military intervention was carried out in order to obtain access to Congolese resources. In respect of the first counter-claim of Uganda (see above concerning the Order of 29 November 2011), the Court found that Uganda had not produced sufficient evidence to show that the DRC had provided political and military support to anti-Ugandan rebel groups operating in its territory, or even to prove that the DRC had breached its duty of vigilance by tolerating anti-Ugandan rebels on its territory. The Court thus rejected the first counter-claim submitted by Uganda in its entirety. As for the second counter-claim of Uganda (see above concerning the Order of 29 November 2011), the Court first declared inadmissible the part of that claim relating to the alleged maltreatment of Ugandan nationals not enjoying diplomatic status at Ndjili International Airport. Regarding the merits of the claim, it found, on the other hand, that there was sufficient evidence to prove that there were attacks against the Embassy and acts of maltreatment against Ugandan diplomats at Ndjili International Airport. Consequently, it found that the DRC had breached its obligations under the Vienna Convention on Diplomatic Relations. The removal of property and archives from the Ugandan Embassy was also in violation of the rules of international law on diplomatic relations. The Court noted in its Judgment that the nature, form and amount of compensation owed by each Party had been reserved and would only be submitted to the Court should the Parties be unable to reach agreement on the basis of the Judgment just rendered by the Court. Following the delivery of the Judgment, the Parties have regularly informed the Court on the progress of negotiations. On 13 May 2015, noting that the negotiations with Uganda on this question had failed, the DRC asked the Court to determine the amount of reparation owed by Uganda. While Uganda maintained that this request was premature, the Court, in an Order of 1 July 2015, observed that although the Parties had tried to settle the question directly, they had clearly been unable to reach an agreement. The Parties have subsequently filed written pleadings on the question of reparations. By an Order of 8 September 2020, the Court decided to arrange for an expert opinion, in accordance with Article 67, paragraph 1, of its Rules, on some heads of damage claimed by the DRC, namely the loss of human life, the loss of natural resources and property damage. By an Order of 12 October 2020, the Court appointed four independent experts for that purpose, who submitted a report on reparations on 19 December 2020. After holding oral proceedings in April 2021, the Court delivered its Judgment on the question of reparations on 9 February 2022, awarding US$225,000,000 for damage to persons, US$40,000,000 for damage to property and US$60,000,000 for damage related to natural resources. It decided that the total amount due should be paid in five annual instalments of US$65,000,000 starting on 1 September 2022, and that, should payment be delayed, post-judgment interest of 6 per cent would accrue on any overdue amount as from the day after the day on which the instalment was due. Para 146: It is further to be noted that, while Uganda claimed to have acted in self defence, it did not ever claim that it had been subjected to an armed attack by the armed forces of the DRC. The ‘armed attacks’ to which reference was made came rather from the ADF. The Court has found above that there is no satisfactory proof of the involvement in these attacks, direct or indirect, of the Government of the DRC. The attacks did not emanate from armed bands or irregulars sent by the DRC, within the sense of ART of General Assembly on the definition of aggression, adopted on December 14 1974. The Court is aware of the view that, on the evidence before it, even if this series of deplorable attacks could be regarded as cumaltive in character, they still remained non-attributable to the DRC. Para 147: For all these reasons, the Court finds that the legal and factual circumstances for the exercise of a right of self defense by Uguanda against the DRC were not present. Accordingly, the Court has no need to respond to the contentions of the Parties as to wheter and under what conditions contemporary IL provides for a right of self defense against in large-scale attacks by irregular forces. 61 Equally, since the preconditions for the exercise of self defense do not exist in circumstances of the present case, the Court has no need to enquire wheter such an entitlement to self-defence was in fact exercised in circumstances of necessity and in a manner that was proportionate. The Court cannot fail to observe, however, that the taking of airports and towns many hundreds of km from Uganda’s border would not seem proportionate to the series of transborder attacks it claimed had given rise to the right of self defence, nor to be necessary to that end. The threat of the use of force Military and paramilitary activities in and against NIcaragua compulsory reading of the overview: On 9 April 1984 Nicaragua filed an Application instituting proceedings against the United States of America, together with a Request for the indication of provisional measures concerning a dispute relating to responsibility for military and paramilitary activities in and against Nicaragua. On 10 May 1984 the Court made an Order indicating provisional measures. One of these measures required the United States immediately to cease and refrain from any action restricting access to Nicaraguan ports, and, in particular, the laying of mines. The Court also indicated that the right to sovereignty and to political independence possessed by Nicaragua, like any other State, should be fully respected and should not be jeopardized by activities contrary to the principle prohibiting the threat or use of force and to the principle of non-intervention in matters within the domestic jurisdiction of a State. The Court also decided in the aforementioned Order that the proceedings would first be addressed to the questions of the jurisdiction of the Court and of the admissibility of the Nicaraguan Application. Just before the closure of the written proceedings in this phase, El Salvador filed a declaration of intervention in the case under Article 63 of the Statute, requesting permission to claim that the Court lacked jurisdiction to entertain Nicaragua’s Application. In its Order dated 4 October 1984, the Court decided that El Salvador’s declaration of intervention was inadmissible inasmuch as it related to the jurisdictional phase of the proceedings. After hearing argument from both Parties in the course of public hearings held from 8 to 18 October 1984, on 26 November 1984 the Court delivered a Judgment stating that it possessed jurisdiction to deal with the case and that Nicaragua’s Application was admissible. In particular, it held that the Nicaraguan declaration of 1929 was valid and that Nicaragua was therefore entitled to invoke the United States declaration of 1946 as a basis of the Court’s jurisdiction (Article 36, paragraphs 2 and 5, of the Statute). The subsequent proceedings took place in the absence of the United States, which announced on 18 January 1985 that it “intends not to participate in any further proceedings in connection with this case”. From 12 to 20 September 1985, the Court heard oral argument by Nicaragua and the testimony of the five witnesses it had called. On 27 June 1986, the Court delivered its Judgment on the merits. The findings included a rejection of the justification of collective self-defence advanced by the United States concerning the military or paramilitary activities in or against Nicaragua, and a statement that the United States had violated the obligations imposed by customary international law not to intervene in the affairs of another State, not to use force against another State, not to infringe the sovereignty of another State, and not to interrupt peaceful maritime commerce. The Court also found that the United States had violated certain obligations arising from a bilateral Treaty of Friendship, Commerce and Navigation of 1956, and that it had committed acts such to deprive that treaty of its object and purpose. It decided that the United States was under a duty immediately to cease and to refrain from all acts constituting breaches of its legal obligations, and that it must make reparation for all injury caused to Nicaragua by the breaches of obligations under customary international law and the 1956 Treaty, the amount of that reparation to be fixed in subsequent proceedings if the Parties were unable to reach agreement. The Court subsequently fixed, by an Order, time-limits for the filing of written pleadings by the Parties on the matter of the form and amount of reparation, and the Memorial of Nicaragua was filed on 29 March 1988, while the United States maintained its refusal to take part in the case. In September 1991, Nicaragua informed the Court, inter alia, that it did not wish to continue the proceedings. The United States told the Court that it welcomed the discontinuance and, by an Order of the President dated 26 September 1991, the case was removed from the Court’s List. -The fact that a state is arming itself does not constitute a threat in the meaning of art 2 para 4. Threat must consist of an explicit announcement of the use of armed force upon the occurrence or non occurence of a certain event or behaviour. 62 Legality of the threat or use of nuclear wweapons- compulsory reading of the overview: By a letter dated 19 December 1994, filed in the Registry on 6 January 1995, the Secretary-General of the United Nations officially communicated to the Registry a decision taken by the General Assembly, by its resolution 49/75 K adopted on 15 December 1994, to submit to the Court, for advisory opinion, the following question : “Is the threat or use of nuclear weapons in any circumstance permitted under international law ?” The resolution asked the Court to render its advisory opinion “urgently”. Written statements were filed by 28 States, and subsequently written observations on those statements were presented by two States. In the course of the oral proceedings, which took place in October and November 1995, 22 States presented oral statements. On 8 July 1996, the Court rendered its Advisory Opinion. Having concluded that it had jurisdiction to render an opinion on the question put to it and that there was no compelling reason to exercise its discretion not to render an opinion, the Court found that the most directly relevant applicable law was that relating to the use of force, as enshrined in the United Nations Charter, and the law applicable in armed conflict, together with any specific treaties on nuclear weapons that the Court might find relevant. The Court then considered the question of the legality or illegality of the use of nuclear weapons in the light of the provisions of the Charter relating to the threat or use of force. It observed, inter alia, that those provisions applied to any use of force, regardless of the weapons employed. In addition it stated that the principle of proportionality might not in itself exclude the use of nuclear weapons in self-defence in all circumstances. However at the same time, a use of force that was proportionate under the law of self-defence had, in order to be lawful, to meet the requirements of the law applicable in armed conflict, including, in particular, the principles and rules of humanitarian law. It pointed out that the notions of a “threat” and “use” of force within the meaning of Article 2, paragraph 4, of the Charter stood together in the sense that if the use of force itself in a given case was illegal — for whatever reason — the threat to use such force would likewise be illegal. The Court then turned to the law applicable in situations of armed conflict. From a consideration of customary and conventional law, it concluded that the use of nuclear weapons could not be seen as specifically prohibited on the basis of that law, nor did it find any specific prohibition of the use of nuclear weapons in the treaties that expressly prohibited the use of certain weapons of mass destruction. The Court then turned to an examination of customary international law to determine whether a prohibition of the threat or use of nuclear weapons as such flowed from that source of law. Noting that the members of the international community were profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years constituted the expression of an opinio juris, it did not consider itself able to find that there was such an opinio juris. The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such was hampered by the continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence to the doctrine of deterrence on the other. The Court then dealt with the question whether recourse to nuclear weapons ought to be considered as illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict and of the law of neutrality. It laid emphasis on two cardinal principles : a) the first being aimed at the distinction between combatants and non-combatants ; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets while b) according to the second of those principles, unnecessary suffering should not be caused to combatants. It follows that States do not have unlimited freedom of choice in the weapons they use. The Court also referred to the Martens Clause, according to which civilians and combatants remained under the protection and authority of the principles of international law derived from established custom, the principles of humanity and the dictates of public conscience. The Court indicated that, although the applicability to nuclear weapons of the principles and rules of humanitarian law and of the principle of neutrality was not disputed, the conclusions to be drawn from it were, on the other hand, controversial. It pointed out that, in view of the unique characteristics of nuclear weapons, the use of such weapons seemed scarcely reconcilable with respect for the requirements of the law applicable in armed conflict. The Court was led to observe that “in view of the current state of international law and of the elements of fact at its disposal, [it] cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”. The Court